Here:
al Bahlul USCMCR Decision (Sept. 9, 2011)
Our earlier posting on al-Bahlul, and the government’s comparison of the Seminoles to al Qaeda is here.
United States v. Al Bahlul
Military Commission Adopts Seminole/Creek Analogy to al Qaeda as Law, But “Takes No Comfort”
Here is the opinion in United States v. Hamdan, a companion case to al Bahlul (the opinion for which is still pending): Hamdan Opinion.
Hamdan, you may recall, was the subject of a major U.S. Supreme Court ruling a few years back, Hamdan v. Rumsfeld.
Here is the relevant text from the opinion (starting on page 52, 53, and concluding at page 63):
2. 19th Century Irregular Warfare and Aiding the Enemy
In 1818, during the first Seminole War, General Andrew Jackson and the U.S. Army entered Florida, which at that time was neutral Spanish territory, in pursuit of Indian warriors. David Glazier, The Laws of War: Past, Present, and Future: Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5, 27 (2005) (citations omitted) Two British citizens, Arbuthnot and Ambrister, were aiding the Indian warriors. Id. (citation omitted). Following their capture, a special court,117 military commission,118 or court-martial119 was convened to try the two men. Arbuthnot was found guilty of, “Charge 1st. Exciting and stirring up the Creek Indians to war against the United States. . . [and] Charge 2d. [A]iding, abetting, and comforting the enemy, supplying them with the means of war,” and he was sentenced to hang. Glazier, supra n. 113, at 28 (citations omitted). Ambrister was convicted of, “Charge 1st. Aiding, abetting, and comforting the enemy, supplying them with the means of war, he being a subject of Great Britain, at peace with the United States, and lately an officer in the British colonial marines. . .” and, “Charge 2d. Leading and commanding [Indians], in carrying on a war against the United States.” Id. at 28 (citing Minutes of the Proceedings of a Special Court, H.Q. Div. of the South at 154-55, 164; H.Q. Div. of the South, G.O. (Apr. 29, 1818)). Colonel Winthrop criticized General Jackson for approving a harsher sentence than the tribunal adjudged on reconsideration.120 Birkhimer, however, considered General Jackson’s actions to be lawful in every respect.121 Winthrop did not criticize the decision to charge Arbuthnot and Ambrister with aiding the enemy. 1920 Winthrop, supra n. 23, at 464-65.
The court takes no comfort in the historical context in which these events occurred or the ultimate disposition of these cases. We cite to these events for their historical occurrence as an embryonic effort of the United States to deal with the complexity of fighters in irregular warfare. In contrast, under the 2006 M.C.A., AUECs have significant due process and are not subject solely to the discretion of the executive. See n. 171 infra.
***
As Attorney General Speed explains at p. 58, ante, the offense against the law of war is complete when these individuals joined the guerilla band. Of course, some action is usually required to manifest that they have joined the guerilla band, such as “taking up arms,” providing advice on how to destroy trains or telegraphs, or providing their presence on a raid. See p. 58, supra. A person can also violate the law of war by providing assistance to a guerilla band, and Civil War military commissions punished numerous offenders for providing a wide array of such assistance. These examples of Civil War-era military commission convictions for providing support or aid to insurgents and guerillas illustrate the long-standing prohibitions against conduct similar to appellant’s aid to al Qaeda.
(red emphasis ours).
Andrew Jackson Article in ICT, with Fletcher Interview
Matthew’s Commentary:
Coming on the heels of the Geronimo/bin Laden Incident, what do you make of the government’s expropriation of indigenous history— using Geronimo as the code name for Osama bin Laden, and then citing the Jackson’s murderous actions against the Seminoles and Brits as a precedent for the prosecution of Al Qaeda suspects?
Generations of West Point officers learn about war from studying the “Indian wars,” and so it would make perfect sense for them to draw an analogy between Indians and al Qaeda. The military tradition is that the Indians were the bad guys, they were savage and engaged in non-traditional, even scary warfare, and that they had no rights under the U.S. Constitution. As such, they were fair game for anything—anything at all—the U.S. military wanted to do to them. Preemptive attacks on unarmed women and children like Wounded Knee, indefinite detention in concentration camps like Fort Sill, mass executions for trumped up war crimes like at Fort Snelling all of it legally justifiable from the point of the view of the military. Same is true in the Department of Justice, where in the days following 9/11, Bush Administration attorneys like John Yoo (now a Berkeley law professor) and Jay Bybee (now a Ninth Circuit judge) argued that the President needed no authorization from Congress to engage in torture, establish military jails and commissions to house and try al Qaeda suspects, etc., through extensive reliance on Indian war-related “precedents” involving self-serving legal opinions about the Modocs, the Seminoles, the Dakota at Fort Snelling, and others. It was Yoo and Bybee who authored so many of the so-called “torture papers” who first explicitly compared the Seminoles and other tribes to al Qaeda. The military prosecutors are just cribbing from them.
News Coverage of Government’s Comparison of Seminole Tribe to al Qaeda
Here, from the Miami Herald, via How Appealing. Here is the link to the government’s brief not objecting to the NCAI letter.
An excerpt:
Pentagon prosecutors touched off a protest — and issued an apology this week — for likening the Seminole Indians in Spanish Florida to al Qaeda in documents defending Guantánamo’s military commissions.
Citing precedents, prosecutors reached back into the Indian Wars in arguments at an appeals panel in Washington D.C. Specifically, they invoked an 1818 military commission convened by Gen. Andrew Jackson after U.S. forces invaded then-Spanish Florida to stop black slaves from fleeing through a porous border — then executed two British men for helping the Seminole Indians.
Navy Capt. Edward S. White also wrote this in a prosecution brief:
“Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war.”
A native American advocacy group complained to the military court. Defense lawyers for two Yemenis convicted of war crimes at Guantánamo countered that the behavior of Jackson, the future U.S. president now on the $20 bill, was no shining example of American military justice.
A politically ambitious Jackson, defense lawyers wrote, waged “an illegal war” that set fire to entire Indian villages “in a campaign of extermination.”
In the legal precedent, U.S. troops convicted two British traders, Alexander Arbuthnot and Robert Ambrister, for helping the Seminoles and escaped slaves and sentenced them to a whipping. Jackson, a slave owner, declared the punishment too soft. He had them executed.
NCAI Amicus Letter in al Bahlul Case
Update on U.S. v. Al Bahlul — More Docs & Government’s Position Comparing Seminoles to Al Qaeda Condemned
We posted Tuesday on the government’s characterization of the Seminole Indians during the 19th century Indian wars as equivalent to Al Qaeda. That posting is here.
The defendant in that case has filed the following response brief, smartly pointing out the history of Gen. Jackson’s invasion of Spanish Florida, which likely was motivated by American slaveowners’ concerns about slaves escaping to Seminole territory. Jackson himself, of course, was a slaveowner. Here is that excellent brief:
US v al Bahlul – Reply on Specified Issues (15 March 2011)
An excerpt:
In the lead up to the First Seminole War, Florida remained under the nominal control of Spain, but Spanish authorities were unable to “enforce peace on the border,” and more importantly, “were unable to prevent black slaves from fleeing to Florida and joining the Seminole Indians.” John K. Mahon, The First Seminole War, November 21, 1817–May 24, 1818, 77 FLORIDA HIST. Q. 62 (1998). While the motivation for the invasion of Florida was partly territorial expansionism, the “principal objective was to break up the free Negro settlements which were becoming increasingly a menace to the slave systems of adjacent states.” Kenneth Wiggins Porter, Negroes and the Seminole War, 1817–1818, 36 J. NEGRO HIST. 249, 254 (1951).
Additionally, this case has received coverage on Huffington Post here.
And the Center for Constitutional Rights has condemned the government’s position in this press release: Balul Final 3-16-11
Federal Government Compares Seminoles to Al Qaeda in Military Commissions Case
In defending its use of military commissions to try a person accused of aiding the enemy, the government states:
Ambrister and Arbuthnot, both British subjects without any duty or allegiance to the United States, were tried and punished for conduct amounting to aiding the enemy. Examination of their case reveals that their conduct was viewed as wrongful, in that they were assisting unlawful hostilities by the Seminoles and their allies. Further, not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violated the customs and usages of war. Because Ambrister and Arbuthnot aided the Seminoles both to carry on an unlawful belligerency and to violate the laws of war, their conduct was wrongful and punishable.
The quote appears on page 25 of this brief: Bahlul Brief IRT Specified Issues (11 Mar 2011). As one reader notes, “This is an unbelievable statement, given that the U.S. was invading Spanish‑held Florida, and General Jackson was burning entire Indian villages in a campaign of extermination. You have to wonder why they had to reach for this analogy.”
In many of the so-called torture papers, Bush Administration lawyers frequently referred to Indian wars as the closest analog to the war on terror. Here is a sample:
American precedents also furnish a factual situation that is more closely analogous to the current attacks to the extent that they involve attacks by non-state actors that do not take place in the context of a rebellion or civil war. The analogy comes from the irregular warfare carried on in the Indian Wars on the western frontier during the nineteenth century. Indian “nations” were not independent, sovereign nations in the sense of classical international law, nor were Indian tribes rebels attempting to establish states. Cf. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (Marshall, C.J.) (describing Indians tribes as “domestic dependent nations”).
Here is the Nov. 2011 memo in which this quote appears. Peter Vicaire and I will be publishing a short paper titled “Indian Wars: Old and New” in the Iowa Journal of Gender, Law, and Justice that will be describing how the government asserts this argument and others.
Turtle Talk 